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Saturday, January 10, 2009

Ind. Law - "West Lafayette looks to clarify 'ambiguous' code"

In Jerry M. and Patti A. Weida v. City of West Lafayette, IN, a 19-page opinion issued Dec. 2, 2008, Judge Riley wrote:

In sum, based on the evidence before us, we conclude that the trial court properly determined that the Weidas permitted or allowed the overoccupancy of their rental house in violation of City Ordinance 117.08(d). However, we hasten to add that our decision today should not be interpreted as an approval of the City’s Ordinance. Not only is the Ordinance poorly written, it is also, in places, highly ambiguous. We echo the sentiment expressed in Bowden v. City of West Lafayette, 79A05-0802-CV-66 (Ind. Ct. App. Oct. 17, 2008), slip op. 1 n.1, that this discussion is better saved for another day when these issues are not beyond the scope of our review and are properly presented to this court. Nevertheless, the issues, as raised by the Weidas, compel us to affirm the trial court.
(Emphasis added. See ILB summary here, 3rd case. For background, see this ILB entry from Oct. 4, 2008.)

Today Michael Malik has a long story in the Lafayette Journal Courier that includes the following:

West Lafayette city officials say they plan to make improvements to the city's overoccupancy ordinance so it's more user-friendly for landlords.

Mayor John Dennis said this week that he is going to form a committee made up of city officials, city council members and citizens to find how the current housing rules could be improved.

"The reason why we have guys out there doing proactive work with code enforcement is to make sure the neighborhoods are safe, that they're clean and the people that are renting property are doing so appropriately within compliance," Dennis said.

Patti Brown, president of RPM, a company that has rental properties in West Lafayette, said she thinks it's a good idea that the city improve the ordinance.

The city's code allows up to three unrelated people to live together in areas zoned residential. Up to four people are allowed to live in a dwelling zoned for apartments or businesses. Brown said she monitors her properties for overoccupancy.

"We tell our residents we are going to do random spot checks to make sure that that rule is not being violated," Brown said.

West Lafayette is examining ways to improve its rules after Indiana Court of Appeals Judge Patricia Riley, in a December ruling, called the city's ordinance "poorly written" and "highly ambiguous" in places.

The ruling stemmed from an appeal of the findings of Tippecanoe Superior Court 2 Judge Thomas Busch, who presided over a bench trial last year in which property owners and managers Jerry and Patti Weida were sued by the city.

They were accused of allowing five women to live in a home at 112 Sylvia St. during Purdue University's 2005-06 academic year.

Eric Burns, the city's attorney, said the main ambiguity the judge was referring to had to do with what the landlord's actual duties are.

The changes are "to be user-friendly for the landlords so if they have a suspected problem they know what they need to do," Burns said.

Burns said the current ordinance just tells landlords they have to monitor their units for possible overoccupancy, but doesn't lay out specific requirements.

Burns didn't lay out what those changes in the ordinance might wind up being.

Patti Weida said she would love to work with the city to revamp the ordinance, because right now the ordinance is not fair to anyone.

"This is what I always knew was going to happen," Patti Weida said. "It wasn't right from the start."

The Indiana Clerk of Courts Web site does not indicate that further action has been taken since the court of appeals' December ruling. Patti Weida declined to say whether she planned to appeal.

If the Weidas do not appeal to the Supreme Court, they likely will have to pay about $44,000 in fines that Busch ordered for the code violations, along with $1,500 for submitting false information and $1,404 toward the city's attorney fees.

Posted by Marcia Oddi on January 10, 2009 09:25 AM
Posted to Ind. App.Ct. Decisions | Indiana Government | Indiana Law